The publisher of the Daily Mail, Associated Newspapers (Associated), has secured a comprehensive victory at the High Court in the much-publicised case in which several high-profile figures accused Associated of engaging in unlawful information gathering.

Given the high-profile nature of the case, it almost needs no introduction. But, in short, seven claimants – including Prince Harry, Elton John, and the mother of Stephen Lawrence, Baroness (Doreen) Lawrence – brought claims of misuse of private information (and in one case breach of confidence) against Associated, alleging that it had employed various forms of unlawful information gathering to obtain information about them which subsequently appeared in published articles. Practices that Associated’s journalists, private investigators, and other related third parties were said to have engaged in included intercepting voicemail messages, listening to live telephone calls, and obtaining private information through deception (so-called ‘blagging’).

Associated strenuously denied all of these allegations. Furthermore, it argued that since the alleged acts took place more than six years before the claims were issued, it could rely on a defence of limitation under the Limitation Act 1980. As we shall see, this became something of a moot point in the light of the judge’s findings, but for the claimants’ part, they argued that the limitation defence was not available to Associated because facts relevant to the rights of action were deliberately concealed from them and that they did not discover (and could not reasonably have discovered) sufficient facts before the relevant date to bring a worthwhile claim.

In the light of the identities of the claimants and the seriousness of the allegations, the case attracted enormous publicity at every stage of proceedings. Against that backdrop, Mr Justice Nicklin was keen to reiterate that “throughout this process, the Court has repeatedly emphasised that it is engaged in determining civil claims between parties within an adversarial system, not conducting a public inquiry into the historic practices of a media organisation”.

Despite running to over 400 pages (including annexes), the judgment is easy to navigate and divided into helpful sections.

After setting out the nature of the claims and the procedural history, Mr Justice Nicklin dedicates considerable time to discussing the relevant evidence and the court’s approach to assessing it. In particular, given that much of the Claimants’ case rested on inviting the judge to draw broad inferences, he addresses questions of the importance or otherwise of absent witnesses, missing documents, and propensity evidence, before observing that:

“the drawing of inferences is an evaluative exercise, grounded in common sense. But it is not a licence for speculation: it must be anchored in the evidence. As I held in the July Judgment ([46]), “drawing inferences is not a process of optimistic guesswork; it is a process whereby the court concludes that the evidence adduced enables a further inference of fact to be drawn”. Whether (and if so what) evidential significance should be attached to missing evidence or absent witnesses depends on the context and upon the totality of the evidence”.

The judgment also sets out the Court’s approach to the standard of proof, stating that while it remains the balance of probabilities, “the more serious (and inherently less probable) the allegation, the more cogent the evidence required to prove it. Accordingly, where the Court is asked to make findings of dishonesty or similar discreditable conduct (including allegations of deliberately false evidence), it is entitled to take account of inherent improbabilities and, in practice, more convincing evidence may be required than would be needed for less inherently improbable conduct”.

Having discussed the Court’s approach to the evidence, the judge then turned to the articles in question. Rather than approaching the claim in broad terms to consider whether there was “widespread and habitual” unlawful information gathering at Associated, Mr Justice Nicklin considered each of the pleaded 57 articles and incidents relied on by the claimants individually, to determine whether any of them were the product of unlawful information gathering (UIG). In doing so, the judgment outlines a “set of common evaluative questions” to be considered:

1. Linkage: is there a sufficiently reliable evidential link between TPI material (including payment records) and the pleaded Article/incident (by timing, target, journalist/desk, or other corroboration), or is the asserted linkage speculative?
2. The inferential step: if no direct linkage exists, what is the precise inferential step relied upon to move from the Article’s content (and surrounding context) to a finding that UIG occurred in respect of that Article?
3. Alternative lawful explanations: is there a lawful explanation for the acquisition of the material (public domain, conventional sourcing, tip-offs, legitimate journalism), and is it positively established or relied upon as sufficient to defeat an inference of UIG?
4. The role of gaps: does any gap in the documentary record add weight to an inference in the particular instance, or is the absence neutral (or even exculpatory), bearing in mind that missing documents cannot reverse the burden of proof?
5. Propensity/context: if propensity evidence is relied upon, does it do more than provide background? In other words, does it provide logically probative support for an inference in the particular case when combined with other evidence, or is it merely a generalised invitation to reason from an alleged wider practice?

Assessing each article and incident in considerable forensic detail against these questions, Mr Justice Nicklin concluded that none of the claimants was able to discharge the burden of proving unlawful information gathering. Although the findings in relation to each article and incident inevitably turned on their particular facts, the judgment returns to similar themes of claimants inviting the Court to draw “inference upon inference” (Nicklin J noting that “suspicion, even justified suspicion, is not enough”), as well as serious allegations being levelled at Associated for the first time at cross examination when they should have been “clearly pleaded and supported by some proper evidential basis”.

Finally, the judgment turned to the question of limitation, holding that, given the findings on liability, it was not appropriate to “invent a factual scenario, detached from findings actually made, in order to determine a limitation defence which does not call for decision”. That said, the judge did consider the matter in relation to one instance involving a so-called ‘limitation camouflage scheme’ whereby a prominent press campaigner and former MP, Dr Evan Harris, proposed publishing stories to be, as Nicklin J puts it, “used to present a later public point of knowledge as the operative basis for the claim, when the relevant facts had already been available, or were at least capable of being obtained, earlier”. Describing Mr Harris’ proposal as “dishonest”, he explained that it was “not merely clumsy or misguided. It was an improper attempt to blunt a limitation argument”.

The judge also rejected the “extremely serious” allegations that three senior executives at Associated lied in their evidence to the Leveson Inquiry such as to conceal information that would have allowed the claimants to bring their claims earlier, stating that in significant respects the claimants’ case shifted from the pleaded allegations of lies to broader criticisms of Associated’s inquiries, disclosure and corporate response to the Leveson Inquiry, which is not how allegations of such seriousness should be advanced.

To read the judgment in full, click here. A summary can be found here.